HOOPER v. BERNALILLO COUNTY ASSESSOR
Legal provision: Equal Protection
ORAL ARGUMENT OF ALVIN D. HOOPER, ESQ. ON BEHALF OF THE APPELLANTS
Chief Justice Warren E. Burger: We will hear arguments next in Hooper against County Assessor.
Mr. Hooper, you may proceed whenever you are ready.
Alvin D. Hooper: Mr. Chief Justice, and may it please the Court:
Appellant Alvin Hooper has been permanently denied a veterans property tax exemption which is given to other similarly situated veterans in New Mexico solely because he did not establish residence in that state prior to May 8, 1976.
The issue in this case is whether that denial by the Appellee Assessor denies his constitutional rights of state citizenship, equal protection, and his fundamental right of interstate migration.
The Court of Appeals from New Mexico held that the denial by the Assessor did not violate those rights and the Supreme Court of New Mexico refused to review that decision and the case is now before this Court on appeal.
The facts of the case can be briefly stated.
New Mexico Constitution authorizes a veteran's property tax exemption in the amount of $2,000 and that exemption is implemented through New Mexico Statute 737-5, which is the statute involved in this case.
In order to quality for the exemption, the statute requires that the Claimant actually be a veteran.
Secondly, that the veteran be a bona fide resident at the time of claiming the exemption, and, thirdly, that the veteran had served on active duty for 90 days during a period of armed conflict.
There is no question about Appellant Hooper meeting those qualifications and those are not an issue in this case.
However, this statute goes on to add another durational type residential requirement which requires that a Vietnam-era veteran claiming the exemption must have been a resident of the state prior to May 8, 1976 in order to qualify for the exemption.
And, it is the validity of this additional residency requirement that is in issue in this case.
The Appellants believe this case is controlled by Zobel v. Williams and under that case the residency requirement is invalid.
Unidentified Justice: I take it the law doesn't require that the person be a resident of New Mexico at some point during his service.
Alvin D. Hooper: No, Your Honor, and that is one of the main reasons I contend this statute has no the residency requirement has not rational basis.
There is no coincidence of military service and residence required.
Like Zobel, this case involves permanent and retrospective classifications of residents in which the newer arriving residents are never able to achieve equality with the earlier arriving residents.
Now, only two alleged purposes have been set forth by the state and by the Assessor which were accepted by the Court below as purposes for this statute.
One of those purposes is to express gratitude and to reward New Mexico's veterans and to ease their return to civilian life at the end of their military service.
However, this statute has a problem in that regard.
If New Mexico's intent was to reward veterans who were residents at the time the exemption was given, then they have failed to do that.
The statute is under-inclusive because it did not include bona fide resident veterans such as Appellant and all other residents who had moved to the state since May 8, 1976.
Justice Sandra Day O'connor: Mr. Hooper, in your view, would the statute be valid if it were limited in granting the exemption only to veterans who were inducted while they were living in New Mexico and returned or discharged to New Mexico?
Alvin D. Hooper: That is certainly a very substantial factor which is not present in this case.
Unidentified Justice: Would it be valid though in your view if it were so limited?
Alvin D. Hooper: --I do not believe it would be for this reason.
Service in the military is really in the national interest and a veteran has served New Mexico whether or not he entered the service from New Mexico.
Justice Sandra Day O'connor: Well, there were a couple of cases, weren't there, from New York which had to do with a statute much like that and I guess this Court affirmed at least one of those cases.
Alvin D. Hooper: This Court summarily affirmed one of those--
Justice Sandra Day O'connor: And, you think that was wrong then?
Alvin D. Hooper: --I believe that distinction is wrong because really all that boils down to is the fact that the veteran is being rewarded for prior residency, not for prior service, because I served New Mexico equally even though I was not a resident at the time of the military service.
A person that enters service does that because of a national interest and serves any state equally and I--
Justice Sandra Day O'connor: Do you think it is not a legitimate purpose for a state to be concerned about the dislocation that the draft into military service imposes on those drafted?
Alvin D. Hooper: --I think it is.
Justice Sandra Day O'connor: From within their state?
Alvin D. Hooper: I think it most certainly is for those resident at the time.
But, once again, I say this statute does not require that kind of coincidence, so that issue--
Justice Sandra Day O'connor: Well, yes, except you were telling me that you think even one drafted differently may also be invalid.
Alvin D. Hooper: --That is right.
And, the question presented by the Assessor in their brief, in fact, relies on that and indicates the fundamental misunderstanding of this statute because it is based entirely on a coincidence of military service and residency which is not required by this statute.
Unidentified Justice: Mr. Hooper, are you a resident of New Mexico now?
Alvin D. Hooper: --Yes, Your Honor, I have been a resident since August of '81.
Unidentified Justice: I notice you had your certificate here issued to you as of North Carolina, however.
Alvin D. Hooper: I have moved around so much I am admitted in a number of states and North Carolina just happens to be my home state and that was the reason I requested admission from North Carolina.
I am still a member of the North Carolina Bar as well.
Unidentified Justice: But this is within the year.
Alvin D. Hooper: Yes, Your Honor.
I believe admission only requires that you be a member of any highest the court of any--
Unidentified Justice: I am not making any question about that.
I am just curious that you had your certificate issued as though you were of North Carolina.
Alvin D. Hooper: --It only requires you to be admitted to a Bar.
You don't have to be admitted to the Bar--
Unidentified Justice: It has nothing to do with a Bar.
It has The inquiry is how do you want your certificate issued, so it is issued to you of North Carolina.
Alvin D. Hooper: --Well, that is not based on legal residency though.
I interpret that requirement as only being where I want the certificate to show I was admitted is the way I believe that is interpreted.
Justice Sandra Day O'connor: Mr. Hooper, may I inquire also, how much in terms of dollars in Bernalillo County in 1983 would the $2,000 property exemption have been worth?
What are we talking about in dollars?
Alvin D. Hooper: --It would be somewhere between $100 and $200 annually is what we are talking about, but I believe this involves a fundamental principle and dollar value cannot be attached to it.
However, I would remind the Court that in the Zobel case the dividend involved there was a very nominal dollar amount but yet five concurring Justices in that case indicated that that scheme, even though it involved a nominal amount of money, clearly impacted the right to travel even though that issue did not have to be addressed in that case.
Unidentified Justice: Is that what you claim is violated here, Mr. Hooper, your right to travel?
Alvin D. Hooper: I believe this classification will not pass the rational basis test, however--
Unidentified Justice: Well, I asked you, what constitutional right is it that you claim was violated?
Alvin D. Hooper: --My constitutional right to be treated equally with other citizen residents of the State of New Mexico.
Unidentified Justice: Well then it is not a right to travel, it is equal protection?
Alvin D. Hooper: It is both, Your Honor.
It is equal protection and also a right to travel.
I consider those Now the right to travel has been analyzed in equal protection terms but both aspects are involved in this case.
Unidentified Justice: And you think that people are deterred from moving to New Mexico by the fact that if they are a Vietnam veteran that they won't get a property tax waiver?
Alvin D. Hooper: This Court has specifically ruled that deterrence is not required, Your Honor.
Unidentified Justice: I was asking you a question.
Alvin D. Hooper: No, I don't believe people are necessarily deterred, but I don't believe Whether they consider the exemption as part of their decision to move to New Mexico, I don't believe that is--
Unidentified Justice: You say that shouldn't make any difference.
Alvin D. Hooper: --I don't believe it should, Your Honor.
Unidentified Justice: Is there a similar exemption for veterans of other wars?
Alvin D. Hooper: Yes, Your Honor, there is.
In fact, there is an exemption for Each one of them has their own specified residency.
For the First World War veterans it is some date in 1934; for the Second World War it is January of '47, I believe; and for the Korean War it is February of '55.
But, nevertheless, I believe that all of those classifications are suspect under the same--
Unidentified Justice: Have they been challenged?
Alvin D. Hooper: --No, Your Honor, these have never been challenged in the state court.
Unidentified Justice: Of course, New Mexico, even if you won, New Mexico could satisfy you by just not giving the break to anybody.
Alvin D. Hooper: Well, that certainly is one possibility, Your Honor, but I am hoping that the residency requirement will simply be severed from the remainder of the statute and the exemption given to everyone.
But, certainly that is my concern, that this statute differentiates improperly between those who were residents before an arbitrary date and those who became residents after that date.
The second thing that--
Unidentified Justice: May I ask before you go on, Mr. Hooper, would your point be exactly the same if instead of a tax exemption they had given a cash bonus?
Alvin D. Hooper: --It is essentially the same thing, Your Honor.
Unidentified Justice: So, under your view if they gave a cash bonus limited in time and I move to Arizona I could pick up the bonus?
Alvin D. Hooper: --Well, now the bonus There is one difference.
The bonus is a one-shot kind of deal.
This has a year after year implication.
Unidentified Justice: I understand that.
But, your rationale seems to me would apply to both.
Alvin D. Hooper: Well, if it is a one-shot deal for a bonus In other words, if in 1983 they had said we are going to give a bonus to people who are resident at this time for 1983, I have no problem with that.
But, this was retrospective.
It was enacted in 1983 but went back to '76 and then it is a continuing lifetime benefit and that is where the problem is.
It has both a long-term, year after year impact and it also has a retrospective feature.
When it was enacted in 1983, it was differentiating between those veterans who were residents of the state at that time.
If it had been enacted prospectively only or enacted in 1983 only for 1983, I would assume all who were residents at that time would have gotten it.
Unidentified Justice: How many people qualify for the benefit, do you know?
Alvin D. Hooper: That is not in the record, but it my understanding that there are about 130,000 potentially qualified veterans in the state and only less than half of those actually qualify for the bonus because of these various requirements placed on them.
Unidentified Justice: By the date requirement?
Alvin D. Hooper: Yes, sir.
Unidentified Justice: Cuts off about half of them?
Alvin D. Hooper: Yes, Your Honor.
The second alleged purpose of this statute is to encourage veterans to settle in New Mexico.
Well, I believe the Assessor himself has even abandoned that argument before this Court, because, as was pointed out in Appellants' brief, that purpose is an impossibility.
It is impossible to enact a reward in 1983 to encourage veterans to settle in New Mexico before 1976.
It is impossible to encourage to do something seven years after a date that is already passed.
We believe that the requirement of residency is not rationally related to these alleged purposes of the statute and there are really four basic factors which go into that position.
The first factor is, as we have briefly pointed out, there is no nexus between the veteran and New Mexico based on a coincidence of military service and residency.
The prior residency has absolutely nothing to do with the military service.
So, it really boils down to the fact that New Mexico is essentially simply rewarding its veterans for prior residency only and I do not believe under the holdings of this Court that that is a legitimate state purpose.
The second factor--
Justice Sandra Day O'connor: Would it be legitimate in your view to limit the tax exemption to residents of New Mexico at all?
Alvin D. Hooper: --Oh, yes, Your Honor, I certainly believe it is legitimate to limit it that way.
And, in fact, the implication in the Assessor's brief seem to be that I was challenging residency requirements per se and also challenging classifications of veterans as opposed to non-veterans per se.
That is not the issue here.
It is conceded that I am a bona fide veteran and I am a bona fide resident, so those are not in issue.
This is an additional requirement over and above that.
Unidentified Justice: Why under Supposing you were still living in Tuckasegee, North Carolina, and simply owned real property in Bernalillo County?
Couldn't you then make the argument that any sort of residency requirement was violative of your equal rights?
Alvin D. Hooper: I think the term "residency" as used in there, which is not in issue here, is synonymous with domicile.
You have to physically live there with intent to remain there.
Unidentified Justice: Well, why, under you line of argument, may the state require domicile?
Alvin D. Hooper: Because I think this Court has clearly held that you can apportion benefits between residents and non-residents and that is not the issue here at all.
Justice Sandra Day O'connor: If you are right on your right-to-travel argument, it would defeat that kind of a statute as well.
Alvin D. Hooper: I am not sure that I understand your comment.
Justice Sandra Day O'connor: Well, one of your arguments I thought was to require a different level of scrutiny because this statute violates the right to travel.
Alvin D. Hooper: Yes, ma'am.
Justice Sandra Day O'connor: And, if it were limited just to residents of any duration you would have the same problem.
Alvin D. Hooper: Well, my argument is that it will not pass a rational basis test.
However, if this Court should determine that it should pass that test, then it should apply the strict scrutiny test because of the impact on the right to travel.
I don't really believe you need to get to the strict scrutiny test in the same way that you did not get to it in the Zobel case.
That case was decided on simply a rational basis ground and I believe that is adequate in this case.
But, as five concurring Justices indicated in that case, if it had been necessary, the strict scrutiny would have been applied to invalid that statute.
That is my position here.
We have absolutely no quarrel with a residency requirement per se.
The second factor that I wanted to mention was the retrospective nature of this requirement.
As I mentioned, it was enacted in 1983, seven years after the date had passed.
This is very analogous to the retrospective feature in the Zobel statute which this Court invalidated.
Now, the Assessor has contended that this residency requirement is somehow tied to enable veterans to make the transition from military life back to civilian life.
Well, in 1983 when it was enacted they had already had eight years in which to readjust to civilian life and it doesn't make sense then to come along and say, well, eight years after the fact we still have a concern about your readjustment to civilian life, therefore, we are going to give you this veteran's exemption.
Unidentified Justice: Well, what if in 1983 the New Mexico Legislature had enacted a statute saying that all Vietnam veterans who resided in New Mexico at the time of their entering the service shall now get a $2,000 exemption?
Alvin D. Hooper: That is essentially the same question that Justice O'Connor, I believe, asked.
That is a different situation here and certainly residency at the time of entering service, that special nexus between the veteran and the state at that time is a substantial factor.
I personally don't believe it is adequate it is still adequate to be valid, but it is certainly a very substantial factor which is not present in this case.
Unidentified Justice: Well, if retrospective as you put it is bad, certainly that is retrospective.
I mean, the statute looks back to another time.
Alvin D. Hooper: It is retrospective in a sense.
As I say, I don't believe that statute itself would be valid, but it at least has some rationality to it in that there may be some rational basis for saying a state has more interest in its veterans who were veterans at a particular time during their military service.
This retrospective feature that we are complaining of, a veteran did not even have to be a resident on May 8, 1976 in order to claim this.
It just simply picked that day out of thin air.
It is completely arbitrary.
The veteran had to have lived in New Mexico one day as an infant in 1920 and moved away from the state and never come back to New Mexico until he retired at age 65 in 1985 and he would immediately get this exemption.
That is how that statute is worded.
It has no rational basis whatsoever.
So, it is not tied to any This May 8th date is completely pulled out of thin air.
It has no connection to anything.
The Assessor and the Court below indicated that it was somehow related to the cessation of hostilities in Vietnam.
In fact, they specifically mention in two places that it was one year after the cessation of hostilities.
Well, it clearly is not.
The cessation of hostilities and the Peace Treaty occurred in January of 1973, more than three years before this date was chosen and not one year after the fact as was indicated by the Assessor.
Unidentified Justice: What would you say about a statute of the state which had been enacted at the beginning of the war and followed the pattern of the Civil War bonuses and provided that every resident every person domiciled in the state who entered the military service would receive a bonus of $1,000?
They hand it to him when he comes back from the recruiting station.
Alvin D. Hooper: That is certainly much more legitimate than this is.
I have no problem with that.
Unidentified Justice: Would you have any claim?
Alvin D. Hooper: No, Your Honor, I would not, because I was not a resident at the time.
And, if New Mexico had given a bonus during the war to those who were residents at that time, I would have no claim to that and that is not what I am claiming at all.
I am claiming that here they are giving an on-going, year-after-year exemption based solely on an arbitrary date of residency which is not tied to anything.
I believe that classifying similarly situated veterans into permanent classes and this is a permanent classification people who came after 1976 are forever barred from achieving equality with those who came before.
I believe that that kind of classification creates a seniority system of state citizens in which the earlier arriving residents are more worthy or more equal in a sense than those who arrived later.
I believe this Court's decisions have clearly indicated that those kinds of seniority systems based on duration of residency or length of residency are invalid.
And by the same rationale, this residency requirement is invalid.
In fact, it is hard to separate date of residency from length of residency.
They are exactly the same thing unless there has been some discontinuity in the residency at some place along the line.
This is essentially the same as In 1983 when New Mexico enacted this statute, they said to their veterans, in order to get this benefit you must have lived in New Mexico for the last seven years.
That is essentially what it boils down to.
And, that, to me, is clearly not permissible in view of this Court's many holdings regarding durational residency requirements.
I believe the 1982 Zobel v. Williams case really controls this case.
The Court below really dismissed that case with a wave of a hand and simply said that for two reasons that that involved a tax legislation this involves tax legislation where Zobel did not and, secondly, that for some reason it was not applicable to this case because Zobel apportioned a benefit rather than denying the entire benefit.
To me, it would appear much worse to deny the benefit entirely than it would be to apportion it based on residency.
I believe the residency requirement here is very analogous to that in Zobel because that involved a retrospective feature.
It also involved permanent classifications or distinctions between citizens.
The Citizenship Clause of the Fourteenth Amendment equates state citizenship with simply residency and that clause does not provide for and does not permit degrees of citizenship.
And, that is exactly what is happening here in New Mexico.
They are creating degrees of citizenship in which those who arrived after May 8, 1976 have a second class citizenship status.
As I indicated, this residency requirement is essentially the same as a durational residency requirement in that it divides residents into those who came at an earlier time and those who came after May 8, 1976.
The waiting period for equality under this statute for a veteran who came after May 8, 1976 is forever.
One could live in New Mexico forever, even though he established residency on May 9, 1976 and he never would get this benefit, whereas, a veteran living in that state for one day at any time prior to that date would be provided the benefit.
Even if this Court should agree that this residency requirement passes the rational basis test, I believe it should go further and subject it to strict scrutiny because of its impact on the fundamental right to travel.
The Court has indicated that the fundamental right to travel prohibits a state from putting newer residents at a disadvantage or otherwise treating them differently from earlier residents.
Under that reasoning, it does not appear permissible for New Mexico to penalize those who exercise their fundamental right to migrate to that state after May 8, 1976.
The Court in the Shapiro case indicated that any classification which penalizes that right must be subjected to strict scrutiny and will not survive unless it is found necessary to promote a compelling state interest.
New Mexico clearly has not shown any compelling interest for this classification.
In fact, there isn't even a rational basis for it much less a compelling interest.
The Court below seemed to feel that the only kind of right that... the denial of which would create an impact on the fundamental right to travel were those rights which would deter migration if they, in fact, were denied.
This Court has clearly indicated that actual deterrent is not required in order to create an impact on the fundamental right.
And, I would point out, this right here is actually very synonymous to the right involved in the Zobel case and the concurring members of this Court clearly believed that that was sufficient impact to create an invalid... That created an invalid impact on the fundamental right to travel.
Furthermore, this tax exemption is authorized in the New Mexico Constitution and certainly for New Mexico residents it is considered a very important benefit.
The fact that the residency requirement itself... I mean the tax exemption statute itself serves generally legitimate purposes is not adequate.
The residency requirement itself must satisfy the legitimate purpose and there is no evidence whatsoever of any legitimate purpose here associated with this statute.
I would like to reserve the remainder of my time.
Chief Justice Warren E. Burger: Mr. Farr?
ORAL ARGUMENT OF H. BARTOW FARR, III, ESQ. ON BEHALF OF THE APPELLEE
H. Bartow Farr Iii: Thank you, Mr. Chief Justice, and may it please the Court:
The issue in this case is whether New Mexico, in awarding a modest benefit for service during the Vietnam War, may impose a condition of bona fide residency at the time of the war.
In our view, it clearly may.
Now, it is important to understand just how the statute works.
In giving a benefit for service during the Vietnam War, New Mexico has created two classes based upon residency at that time.
The first class and one that admittedly is not mathematically exact, consists mainly of persons leaving New Mexico for the war and persons coming back and settling in New Mexico within a year after the war's end.
That class New Mexico regards as its citizens at the time of the war and they get a modest reduction in their property valuation.
The second class consists of people who left from other states, came back and settled in other states, and had no ties whatsoever to New Mexico at any time during the Vietnam War.
That group may have gotten bonuses and other benefits from their home states at the time of the war but they do not qualify for the New Mexico benefit.
Now, Appellant's argument depends essentially on compressing two separate time periods into one.
Looked at closely, his claim to the New Mexico benefit says, first, that 20 or so years ago he served during the Vietnam War.
Then he says four years ago he came to New Mexico and became a resident and is now a resident of New Mexico.
Thus, he says, he is both a soldier and a resident indistinguishable from other soldiers and residents who get the benefit.
Justice Sandra Day O'connor: Mr. Farr, what is precisely the purpose of this tax exemption?
H. Bartow Farr Iii: The tax exemption, I think, has several purposes.
First of all, I think the state legitimately wants to reward the people from that state who went into the service and I think that is the purpose.
Justice Sandra Day O'connor: If that is the purpose, this is kind of a peculiar date to impose, isn't it?
H. Bartow Farr Iii: That is one of the purposes.
I think there are several groups that fall within the class.
Justice Sandra Day O'connor: Because it picks up people who were not residents either at the time they were drafted or when they were discharged.
H. Bartow Farr Iii: I think if you look at the class that it does pick up the people who were residents at the time they went in.
They certainly fit within the class.
It also picks up people who came back--
Unidentified Justice: Well, it doesn't if they don't come back to New Mexico and they aren't there today.
Justice Sandra Day O'connor: They have to come back and be there today.
H. Bartow Farr Iii: --That is right.
Justice Sandra Day O'connor: But, I guess the war ended in what date, the Vietnam War?
H. Bartow Farr Iii: The official date that Congress has given for the end of the Vietnam era is May 7, 1975 which is the date put in this statute in 1981 and then there was an additional year's grace period provided.
Justice Sandra Day O'connor: Now it is '76.
H. Bartow Farr Iii: That is correct.
So, it does pick up, however, assuming they are residents now, the people who left from Vietnam and went to the war.
It also picks up anyone who came back and settled in New Mexico during the period of the war which is the time presumably that New Mexico can recognize as one of significant adjustment back to civilian life.
There may not be an exact time period between the two, but I think again generally it serves that.
The person that Appellant keeps relying on who is within the class but admittedly doesn't exactly fit these purposes is someone who had to have been in New Mexico long ago.
He then had to have left before the war started, otherwise, of course, he is within the class we are trying to benefit, then he has to not come back to New Mexico or otherwise again he would be within the class.
But then he does have to come back later and claim the benefit.
I don't think New Mexico has to draft a statute that knocks him out in order to uphold the rest.
Unidentified Justice: Mr. Farr, I may have misunderstood the statute, but did I correctly understand you to say that he had to enlist from New Mexico?
H. Bartow Farr Iii: No, no, no, I am sorry.
What I am saying is people who do enlist from New Mexico are within the class benefit.
There is no question about that.
What I am saying is that the person that Appellant is talking about who doesn't really fit within this purpose at all but who gets the benefit, in fact, has to do the opposite.
He has to have lived in New Mexico before the war, then not enlisted from New Mexico, not come back to New Mexico after the war, but then later come back afterwards.
Unidentified Justice: But does he even have to come back?
Couldn't you presumably--
H. Bartow Farr Iii: He has to be a resident now, yes.
Unidentified Justice: --Why does he have to be a resident now?
H. Bartow Farr Iii: That is a separate requirement of the statute.
Unidentified Justice: Oh, is it?
I didn't realize that.
H. Bartow Farr Iii: Yes, it is.
On the subject of rewarding residents but not non-residents at the time of the war, I submit that there is nothing unconstitutional or even unusual about it, although this obviously is not dispositive.
Unidentified Justice: Would you see any problem, Mr. Farr, if they had this same kind of a plan in the state from which he moved so that he got a bonus back at the hometown and then got one here?
H. Bartow Farr Iii: No.
In fact, New Mexico is unusually generous in that it is not a state that would deprive a veteran who had moved, for example, before May 7, 1976, of the exemption simply because he received a bonus somewhere else.
Other states that have similar arrangements do have a specific limitation that says essentially one bite at the apple.
If you got one somewhere else, then you can't come here and claim another one.
New Mexico does not do that.
Unidentified Justice: You intimate that they could constitutionally do that.
H. Bartow Farr Iii: I believe they probably could constitutionally do that, but, as I say, they don't.
Unidentified Justice: But, if they have got a tax exemption back in the home state, then they would just be continuing their tax exempt status in your view here.
H. Bartow Farr Iii: Well, the fact is though that... I think again it depends.
If they satisfy the conditions of this statute... In other words, if they are within the group that New Mexico rightfully considers its citizens at the time of the war, then it seems to me that they should be able to get the benefit and New Mexico wants them to have the benefit whether or not they have gotten the benefit from some place else.
I think they could perhaps cut that class more narrowly.
But, I think it is to their credit they haven't.
I don't think it makes the statute more constitutionally suspect.
Now, in connection with pure residency requirements at the time of service as opposed to durational residency requirements, every court that has ever considered that has upheld it.
In fact, one court recently, the Supreme Court of Maine, upheld a requirement at the time of service... in that case the statute was you had to be a resident at the time you went into the service... at the same time it struck down a durational residency requirement.
And, as Justice O'Connor noted earlier, the Federal District Court in August versus Bronstein upheld the New York employment preference to veterans who were New York residents when they entered the service and this Court summarily affirmed that decision.
Unidentified Justice: Of course, this case is a little different because the New Mexico statute doesn't really require that.
H. Bartow Farr Iii: It seems to me that the New Mexico statute is, in fact, more generous than the New York statute at issue in August versus Bronstein and, indeed, more generous than almost any other statute, in fact, perhaps any other statute that does give bonuses or other benefits.
New Mexico originally had a statute which... for the Vietnam War which conditioned the benefit on entry into the service from New Mexico.
What they did in 1981 and then again in... by adding a year in 1983 was to expand that class of beneficiaries so they didn't cut out people who came back and settled during the time of the war.
I think that makes the statute better rather than worse from a constitutional standpoint.
Appellant makes two attacks on the means used by New Mexico to serve its purpose.
First he says that the date of May 7, 1976, described by the Court of Appeals as one year after the final U.S. troop withdrawal, is, in fact... I think that is phrased correctly... pulled out of thin air and bears no relation to the Vietnam War at all.
This argument is simply incorrect.
In Title 38, Section 101 of the U.S. Code, Congress has specifically provided in defining those eligible for federal veterans' benefits that the Vietnam era ended on May 7, 1975.
That date is precisely the date that New Mexico chose in 1981 when it first enlarged the statute before it added on another year's grace period in 1983.
Now, Appellant's other argument is even if New Mexico could have declared a benefit for all its resident veterans on May 7, 1976 it could not grant a retroactive benefit to exactly the same class in 1981 or 1983.
Now, in my view, this is really Appellant's main argument just stated another way.
If there was a rational basis for awarding New Mexico soldiers a benefit on May 7, 1976 because they had particular ties to New Mexico at the time of the war, which is what we submit, that basis does not disappear simply because the war is over.
For example, if New Mexico had granted a benefit to its veterans on May 7, 1976 on the basis of those special ties, Appellant clearly would not have been able to claim the same benefit simply by showing up five years later.
Yet, the basis of the benefit and Appellant's lack of the necessary ties is exactly the same in 1981 and, in fact, it is exactly the same right now.
This case thus is very, very--
Unidentified Justice: What about those people in that extended period, that year's grace period?
I know you call it a grace period, but it is still after the war is over even by congressional terms.
H. Bartow Farr Iii: --Well, I think again the fact that they give the extra year in my view doesn't make the thing any... constitutionally more infirm.
But, particularly if you look at--
Unidentified Justice: What if they had said we are going to give five years' grace period?
H. Bartow Farr Iii: --In one sense I think that the state is entitled to determine how long they think a reasonable readjustment period after a war would be.
I don't think it has to be precisely the date Congress picks at the end of the war and I think a year is all right.
I think five years might get out toward the edge, but the fact is, particularly if you look at the conditions in Vietnam--
Unidentified Justice: You are saying these people who get the exemption have a substantial connection residence in New Mexico during a period that the Vietnam War had some substantial impact on people generally?
H. Bartow Farr Iii: --That is correct.
And, I think unfortunately, of course, people coming back from the Vietnam War, unlike people coming back from other previous wars, the readjustment period I think is generally seen to be much longer.
I think for a state to say we still think there may be people coming back by May 7, 1976, a year after the end of the era, who we feel a special solicitude for, I think that is entirely proper.
I would also like to point out that if the retroactive part--
Unidentified Justice: Why should the exemption go on forever?
H. Bartow Farr Iii: --In terms of the tax exemption?
Unidentified Justice: Yes.
H. Bartow Farr Iii: I think that is simply a matter of how New Mexico chooses to--
Unidentified Justice: But you were going to say that the readjustment period lasts for a length of time but not forever.
You would think that when the readjustment period is over so would the tax exemption disappear.
H. Bartow Farr Iii: --Well, I certainly don't think New Mexico would be prohibited from ending the tax exemption but I don't think there is any requirement that they have to continue.
If it fits its purposes initially, it seems to me that a state can say rather than to have a period of time where we say, okay, you don't need any more help, we are still thankful for what you did.
We feel that the help we gave you was useful and we will continue it.
Unidentified Justice: I know, but if you are not basing it on a necessity for readjustment, it seems to me to give a life-long exemption rather exceeds the speed limit.
H. Bartow Farr Iii: I think it is essentially just a matter of state generosity.
I mean, again I think that a state doesn't have to say--
Unidentified Justice: Which it refuses to other people.
H. Bartow Farr Iii: --Pardon me?
Unidentified Justice: Which is refuses to other people.
H. Bartow Farr Iii: That is correct, because they are not within the class of people that New Mexico feels had the special ties at the time of what you are getting the benefit for.
That is simply a matter of classification.
Exactly how you pay out the benefit, what the particular dollar amount is, whether you pay it in a lump sum or pay it out over time, seems to me essentially doesn't change the constitutional picture if the class that is getting it is properly deserving.
I think they are.
I would like to point out too, as Justice O'Connor was talking about earlier, they did... New Mexico had a statute in 1976.
We are talking about the retroactivity problem.
What they did in 1981 was simply try to expand this, not just generally but to give to Vietnam veterans the same sort of benefit that they had given to the veterans of every other war.
Up until 1981 the Vietnam veterans in New Mexico stood on a lesser footing than World War I veterans, World War II veterans and Korean War veterans.
So that there effort in 1981 was, in fact, to give the same sort of classification to Vietnam veterans that they had given for other wars.
Unidentified Justice: Mr. Farr, if your opponent is right, and I don't say whether he is or not, all that means is... He says they are all unconstitutional and the fact that they follow an unconstitutional pattern after every war doesn't add any force to this one.
H. Bartow Farr Iii: I understand that.
But at least in terms of the retroactivity the point I want to make is that if, in fact, a state is prohibited by the Constitution from going back and adjusting a statute after the event for which... at which the statute is being directed, then it would prevent them from... Let's say, for example, in an earlier situation they had a perfectly legitimate statute and they simply wanted to conform this to that without any question about it.
Presumably Appellant's argument would prevent them from doing that too and that is simply the point I am trying to make.
I would like to point out that in my view this case is completely different in both time and degree from Zobel versus Williams.
New Mexico has not decided that long-term residents simply by virtue of their residence are somehow more deserving than other residents.
Residence itself doesn't give anybody a right to this benefit and many, if not most, long-time residents of New Mexico don't get it.
Nor is New Mexico trying to reward citizens after the fact simply for having done what is normally expected of citizens as state citizens.
What New Mexico has done is to recognize that some people while as residents did something extra and deserve an extra measure of thanks and help.
That judgment simply doesn't create the sort of second class citizenship that was at issue in Zobel.
Justice Sandra Day O'connor: Well, but it does of course give the tax exemption, for example, to someone who had never lived in New Mexico until, let's say, May 6, 1976, and who moves there that date but would deny it to somebody who came there May 9th.
H. Bartow Farr Iii: That is correct.
But, I don't think... If that is--
Justice Sandra Day O'connor: And, that is the difficulty when you look at Zobel, I suppose.
H. Bartow Farr Iii: --Well, I don't regard it as the same though for a couple of reasons.
In the first place, that is true of any statute that draws a line.
You look at someone just on one side and someone just on the other and you say that, boy, they look a lot alike.
So, I don't think there is anything unique about this statute.
In the Zobel situation though the purpose was simply to reward citizens generally for the generalized notion that they had been citizens through a period of time doing what is normally expected of citizens, nothing unusual.
I think the Court correctly said in Zobel that purpose is impermissible, it opens up an endless amount of doors that could lead to real second-class citizenship.
But here I think they are just simply saying this is the line we are drawing for the end of a particular event that we are rewarding by giving special help for and I think it is a completely different kind of line.
Now, I would like to spend just a few minutes on the question of right to travel.
Appellant has said that even if the statute if perfectly rational, it still must be struck down because it burdens the right to travel.
I think the argument is wrong for several reasons.
First of all, this case really doesn't involve the right to travel in the usual sense.
As I have said, what this case is really about is a bona fide residency requirement at the time of the war.
In cases involving the question of residency at the time of a particular event as opposed to over a length of time, I think the proper focus should be on barriers to residency at the time of the event.
New Mexico did not put up any barriers to Appellant coming to New Mexico during the time of the war.
This is not a situation, for example, where Appellant is saying I was there on May 1, 1976, but there was a requirement that I had to have been there six months before May 6, 1976 and, therefore, I haven't gotten the bonus.
What he is simply saying is I came later and, therefore, didn't get into the class.
I think that is a very different kind of inquiry from the right-to-travel inquiry than the Court is normally engaged in.
But, even if you look at the situation in 1981 when Appellant came or if you look at it now, I still think that there isn't any real burden on the right to travel.
This is not a case, for example, where the state has deliberately sought to keep out any particular residents or new residents generally, therefore, for example, it is completely different from Shapiro where there was an impermissible purpose very obvious from the statute to keep indigents out of the state.
Nor does it present any concern about a state trying to wall itself off from national concerns.
To the contrary actually, New Mexico is rewarding a national service in this situation.
There is also no intolerable penalty.
Again, this is not a case where the state is depriving new residents of welfare benefits or medical care or something of that nature.
Even if those... Even if denial of those benefits is intended to keep people from traveling, I think the Court has recognized that it will make people realistically think twice, some class of people, and if they come anyway may cause a serious hardship.
But, we are talking essentially here about a tax exemption of $100 or so to someone who has to be a property owner in the first place and I don't think it in any way amounts to that sort of penalty.
So, our position in short is that the statute does not infringe the right to travel.
New Mexico has made a rational decision to confer a special benefit on those veterans who were its residents at the time of the war and it has defined that class not in a mathematically precise manner but in a perfectly rational manner and equal protection requires nothing more.
Unidentified Justice: Anything further, Mr. Hooper?
Alvin D. Hooper: Yes, Your Honor, just a couple of comments.
I note that the Assessor persists in categorizing this statute as requiring a coincidence of military service and residency and that is clearly not the case here.
The statute, until its amendment in 1981, did require that, but obviously the Legislature had something in mind when they--
ORAL ARGUMENT OF ALVIN D. HOOPER, ESQ. ON BEHALF OF THE APPELLANT -- REBUTTAL
Unidentified Justice: Mr. Hooper, you rely heavily on the one-year grace period you might call it.
Do you agree the statute would be all right if there were not the one-year period?
Alvin D. Hooper: --No, Your Honor, I do not agree that it would be all right.
Unidentified Justice: Even then, of course, you would have the coincidence of residence and military service.
Alvin D. Hooper: Well, not necessarily, because even if they had said you had to be a resident on May 8, 1975, for example, the Vietnam service could have occurred in 1963 or 1964 and you still wouldn't have the coincidence of service.
The person could have moved to the state after the service and they rely exclusively on a coincidence of military service and residency and that is nowhere required in the statute.
In fact, it was taken out of the statute specifically in 1981.
Unidentified Justice: What if they were to adopt a theory that they require a person to have been a resident or to have made up his mind to become a resident when he was in the service?
Alvin D. Hooper: Well, that certainly is a much more significant factor than what is involved in here.
Unidentified Justice: If they could do that, couldn't they adopt a short-hand proxy and we will presume that everybody who got here within the period it takes to get demobilized and transported back from the Far East and all the rest presumably made up his mind to come here while he was in Vietnam?
Alvin D. Hooper: But, that is not the situation.
The example that I gave, the veteran having served in 1963 and he doesn't show up until 12 years later.
Now, are you going to presume a 12-year intent?
Or even the person who lived in New Mexico many years ago and then served from another state--
Unidentified Justice: Of course, the Vietnam War is a little different, but you said this case is really like all the others.
In wars service really doesn't end until the hostilities end.
So, normally there isn't that gap between possibly being discharged a couple of years before the end of hostilities.
But, you rely on the unique circumstances of the Vietnam War then?
Alvin D. Hooper: --Well, in all these other... In fact, the Assessor mentioned that this simply made the residency requirement for Vietnam synonymous with the other wars.
That is not the case.
The residency requirement for those other wars was added substantially contemporaneously with the date itself.
It was only prospective kind of application.
Unidentified Justice: They all had a period of grace after them, didn't they, each of those?
Alvin D. Hooper: But here we are going back eight years prospectively in picking up... and in the meantime a large number of residents such as Appellants in this case moved to the state.
And, at the time the residency requirement was enacted, then they are discriminating against those residents.
Whereas, in the other cases, they were not.
One other thing that the Assessor mentioned was the unusual generosity of New Mexico.
Whether a state gives a benefit or not is not controlling here, it is how it apportions that benefit regardless of how generous it may be in the benefit.
I am not complaining about whether they give a generous benefit or not.
You cannot escape the prohibitions against discrimination.
Unidentified Justice: You want them to be generous to you?
Alvin D. Hooper: I want them to treat me equally with all the others is my contention in this case.
It doesn't matter whether they give the benefit in the first place or not, but once they decide to give it, the generosity to a select few is what creates the problem in this case.
Unidentified Justice: Well, you are saying, I suppose, that if New Mexico is giving... in 1985 giving a tax exemption for war service prior to 1975--
Alvin D. Hooper: 1976, Your Honor.
Unidentified Justice: --1976 and it is going to go on forever, other people who have war service and move to New Mexico ought to get the same break.
Alvin D. Hooper: That is exactly right.
If you allow this tax exemption in this case, you are indirectly--
Unidentified Justice: If it had been in a lump sum you wouldn't be arguing that.
Alvin D. Hooper: --A one-shot deal would not be the same, but if you allow--
Unidentified Justice: Well, it not only wouldn't be the same, but--
Alvin D. Hooper: --I wouldn't be qualified for it.
Unidentified Justice: --Yes.
Alvin D. Hooper: But, if you allow the exemption in this case, you are also allowing New Mexico to have a different income tax system for those who arrived before 1976 and those who arrived thereafter or charge a different sales tax rate or what would prevent the state in 1983 from saying welfare benefits such as involved in Shapiro will only be available to those who are residents of the state prior to May 8, 1976.
That is exactly what this statute--
Chief Justice Warren E. Burger: This sounds to me a little bit more, Mr. Hooper, like privileges and immunities argument than a right to travel argument.
Alvin D. Hooper: --This case is not distinguishable from the Zobel case on the privileges and immunities issue.
Chief Justice Warren E. Burger: Well, Zobel turned on what theory--
Alvin D. Hooper: Zobel, to me, turned on a theory of equality of citizenship and equal protection.
Chief Justice Warren E. Burger: --Equal protection clause, but not on the privileges and immunities.
Alvin D. Hooper: But, this case is indistinguishable from Zobel on the privileges and immunities.
Chief Justice Warren E. Burger: You are saying that we could not decide this case or should not decide it under the privileges and immunities clause?
Alvin D. Hooper: You did not decide Zobel on that basis and I would suggest that Zobel controls this case.
Chief Justice Warren E. Burger: Very well.
Thank you, gentlemen, the case is submitted.